[1] Whether a superior statute may restrict the appointment and commission of an institution member granted to the head of a local government by a subordinate statute (negative in principle), and whether a local council may enact a municipal ordinance that provides for the above restriction as part of the exercise of the authority to conduct inspections and investigation for criticism, surveillance, and control of the affairs of a local government (negative in principle)

[2] The validity of a municipal ordinance where a local government stipulates matters concerning the limitation of residents' rights or the imposition of obligations without the delegation of a law (negative)

[3] In a case where the Governor of Jeollabuk-do requested a re-resolution on the "Ordinance of Personnel Verification to the head of a Do-funded institution, etc." whose purpose is to verify personnel affairs of the Do-designated head, etc. of the Do-designated head of the Do-do-designated head, on the ground that the exercise of his/her personnel authority was infringed against the upper statutes, but the Governor of Jeollabuk-do re-resolutiond on the original part of the Ordinance, the case holding that the

[1] Unless a superior statute provides for checks or restrictions, such as granting the authority to appoint or commission members to the head of a local government while obtaining the consent of the local council on the exercise of the authority to appoint or commission, or provides that such restrictions may be imposed by ordinances, etc., the authority to appoint or commission under the pertinent statute shall be deemed exclusively granted to the head of the local government. Therefore, a subordinate statute does not restrict the authority to appoint or commission the head of the local government, and it cannot enact any ordinances that stipulate the above restrictions as part of the exercise of the authority to audit and investigate administrative affairs for criticism, surveillance, and control of the affairs of the

[2] According to the proviso of Article 22 of the Local Autonomy Act and Article 4(3) of the Framework Act on Administrative Regulation, where a local government establishes a municipal ordinance concerning the restriction on the rights of residents or the imposition of obligations on residents, or where penal provisions apply, it is required to be delegated by law. Therefore, the municipal ordinance that provides matters concerning the restriction on the rights of residents or the imposition

[3] In a case where the Governor of Jeollabuk-do requested a re-resolution on the "Ordinance of Personnel Verification to the head of a Do-funded institution, etc. of the Do-funded institution, etc." whose purpose is to verify personnel affairs of the Do-designated institution, on the ground that it infringes on the exercise of his/her personnel authority against the upper statutes, but the Governor of Jeollabuk-do-do re-resolutions on the original part of the Ordinance, the case held that since the personnel verification of the Do-Do-funded institution under the above Ordinance of Personnel Verification is not allowed since it limits the appointment and commission authority of the Do-do-funded institution without the basis of the upper statutes, and the provisions of the Ordinance concerning the submission of data are prescribed by ordinances concerning the imposition of the obligation of residents without the delegation of the Act, and thus, it is not allowed as a violation of the proviso to Article 22 of the Local Autonomy Act, and as long as such, the provisions of the Ordinance concerning the submission of personal information exceeded the permissible scope under Article 15 (1) 3 of the Personal Information Protection Act, Article 40 (1) and (4) of the Local Autonomy Act.

[1] Article 22 of the Local Autonomy Act / [2] Article 22 of the Local Autonomy Act, Article 4(3) of the Framework Act on Administrative Regulation / [3] Articles 22, 40(1), and 41(4) of the Local Autonomy Act, Article 15(1)3 of the Personal Information Protection Act

[1] Supreme Court Decision 2003Du44 Decided July 22, 2004 (Gong2004Ha, 1461) / [2] Supreme Court en banc Decision 2010Du19270 Decided November 22, 2012 (Gong2013Sang, 51), Supreme Court Decision 2016Du5162 Decided December 5, 2017 (Gong2018Sang, 85)

Governor of Jeollabuk-do (Law Firm Cheongong, Attorneys Jin-gun et al., Counsel for the defendant-appellant)

Jeollabuk-do Council (Law Firm Purpose, Attorney Kim Jin-jin, Counsel for defendant-appellant)

November 9, 2017

The re-resolution made by the Defendant on November 25, 2014 regarding the “Ordinance of Personnel Verification to the Head of the agency, etc. funded by Jeollabuk-do” is invalid. The costs of the lawsuit are assessed against the Defendant.

1. Re-resolution of the Ordinance of this case and summary of the Ordinance

The following facts may be acknowledged according to the statements in Gap evidence 1 to 6.

A. On September 30, 2014, the Defendant passed a resolution on the “The Ordinance of the Ministry of Public Administration and Security” (hereinafter “the Ordinance of the instant case”) with respect to the head of the agency, etc. funded by Jeollabuk-do, and transferred it to the Plaintiff on October 2, 2014. As to this, the Plaintiff demanded reconsideration from the Defendant on October 22, 2014, on the ground that “the Ordinance of the instant case with respect to the head, etc. of the agency, etc. funded by the Plaintiff, upon the request of the Minister of Public Administration and Security for reconsideration, infringes on the exercise of the Plaintiff’s personnel authority against the superior statute.” However, the Defendant re-resolutioned the Ordinance of the instant case on November 25, 2014.

B. The Ordinance of this case provides the following provisions.

1) The purpose of this Ordinance is to contribute to enhancing personnel transparency and fairness and enhancing sound management and competitiveness of funding institutions (Article 1) by prescribing matters necessary for conducting personnel verification of the head of the Jeollabuk-do funding institution, etc. (Article 1).

2) Persons subject to personnel verification are the heads of funding institutions appointed or recommended by the Governor and “heads of funding institutions, etc. with which the Do Governor or Vice Governor is the president” (Article 4). The competent commission shall conduct personnel verification within 60 days from the date on which a person subject to personnel verification is appointed (Article 7(1)). The competent commission shall conduct personnel verification by having the person subject to personnel verification attend and answer questions and hear opinions (Article 7(3). The commission may hear testimony and statements from the witness or witness, if necessary (Article 7(4)).

3) The Chairperson may request the Do Governor to submit data, pending issues, etc. necessary for the verification of personnel affairs, if requested by a resolution or a member of the Committee, and the Do Governor so requested shall submit the data within four days from the date of receipt of the request, except as otherwise expressly provided for in statutes or municipal ordinances (Article 8(1) and (3)).

4) Personnel verification of a person subject to personnel verification shall be conducted with respect to matters on duty, (1) matters on military service, (2) matters on military service, (3) matters on compliance consciousness, such as past criminal punishment, administrative sanctions, and tax payment records, (4) matters on moral deficiencies and morality likely to be socially criticized, and (5) matters on fairness (Article 9 subparagraphs 1 through 5). The Committee shall submit a personnel verification report to the Speaker within three days from the date on which the personnel verification is completed, and the Speaker shall report it to the plenary session without delay and send it to the Do governor (Article 11).

5) A personnel verification meeting shall not be disclosed by a resolution of the Committee if it is evident that the disclosure is in principle or that the reputation or privacy of an individual is likely to be unduly infringed (Article 12).

2. Whether the Ordinance of this case violates the statutes

A. We examine whether Articles 4, 7(1), 9, 11, and 12 of the Ordinance of this case (hereinafter “the Ordinance on Personnel Inspection”) violate the superior statute.

1) Unless a superior statute provides for checks or restrictions, such as granting the authority to appoint or commission members to the head of a local government while obtaining the consent of a local council on the exercise of the authority to appoint or commission, or provides that such restrictions may be imposed by ordinances, etc., the authority to appoint or commission under the pertinent statute shall be deemed exclusively granted to the head of a local government. Therefore, a subordinate statute does not restrict the authority to appoint or commission the head of a local government, and it cannot enact any ordinances that stipulate the above restrictions as part of the exercise of the authority to audit and investigate administrative affairs for criticism, surveillance, and control of the affairs of a local government (see Supreme Court Decision 2003Da44, Jul. 22, 2004).

2) Article 4 subparag. 1 of the Ordinance of the instant case provides that “the head of a funding institution, etc. appointed or recommended by the Plaintiff” shall be subject to personnel verification. However, in the case of an equivalent funding institution, all of the relevant higher-level statutes, except for the Jeollabuk-do Women’s Education Culture Center, which provides for the appointment procedures for the institution head, provide only the appointment procedures for the relevant institution head, and the Local Autonomy Act or relevant statutes do not provide any provision regarding personnel verification

In addition, Article 4 subparag. 2 of the Ordinance of this case provides that “the Do Governor or Vice Governor who is the president” shall be subject to personnel verification. The relevant funding institutions are designated and publicly announced as the funded institutions of Jeollabuk-do pursuant to Article 5 of the Act on the Operation of Institutions Invested or Funded by Local Governments, and Article 4(1) and (3) of the same Act and Article 32 of the Civil Act are non-profit foundations established and operated by the defendant’s ordinances (However, in the case of the Jeollabuk-do Culture and Tourism Foundation, matters necessary for the establishment and operation thereof shall be prescribed by ordinances pursuant to Article 19(1) and (3) of the Local Culture Promotion Act). However, all of the funding institutions under Article 4 subparag. 2 of the Ordinance of this case provide for the procedures for appointment of the head of the institution in accordance with the Ordinance on the Operation of Institutions Invested or Funded by Local Governments, Articles 40 and 43 of the Civil Act, and the establishment and operation of the relevant institutions, and do not provide for personnel verification to the head of the defendant funding institution.

On the other hand, the Local Autonomy Act provides for the right to request submission of documents (Article 40), the right to audit and investigate administrative affairs (Articles 41 and 41-2), the right to request the attendance and reply of the head of a local government, etc. with the authority to request the submission of documents as an check to the executive organ of the local council (Article 42). However, there is no provision on the personnel verification of the local council with regard to the head of

3) In full view of the aforementioned legal principles and the provisions of relevant statutes, it is reasonable to view that the upper-tier statute does not provide for matters concerning the verification of personnel by the Defendant with respect to the head of a funding institution, etc. under Article 4 of the Ordinance of this case, to allow the Plaintiff to appoint or commission the head of a funding institution, etc. under exclusive responsibility in order to establish a responsible management system of a funding institution, a public institution, and to guarantee its autonomous operation (see Article 3 of the Act on the Management

Furthermore, the procedures for the personnel hearings on candidates for public office, which are not subject to the consent of the National Assembly under the National Assembly Act and the Personnel Hearing Act, are only the purpose of having the appointment authority re-examine the appointment of candidates in advance, and there is no compulsory power that prevents the appointment of candidates.

However, although the Ordinance of this case provides for the procedure for ex post facto personnel verification, since the purpose and purpose of the system are to point out the problems about the head of a funding institution appointed by the Plaintiff, it can be deemed that it is substantially the same as requiring a prior personnel hearing procedure that is not allowed without delegation of statutes in terms of its effect.

In addition, it is difficult to see that there is a practical benefit to introduce the ex post facto personnel verification system, as it is possible to correct the corruption or irregularities revealed in the exercise of authority after the appointment of the head of a funding institution, separately through the exercise of the defendant's authority to audit and investigate the administrative affairs under the Local Autonomy Act.

Therefore, the defendant's personnel verification of the head of a funding institution, etc. under the personnel verification provision of this case among the proposed ordinances of this case is not allowed since it restricts the plaintiff's appointment and commission authority under the upper law without any basis.

B. We examine whether Article 8(1) and (3) of the Ordinance of this case (hereinafter “Ordinance of this case”) violates the proviso to Article 22 of the Local Autonomy Act.

1) According to the proviso to Article 22 of the Local Autonomy Act and Article 4(3) of the Framework Act on Administrative Regulations, where a local government establishes a municipal ordinance concerning the restriction on the rights of residents, the imposition of obligations on residents, or penal provisions, the statutory delegation is required. Therefore, the municipal ordinance that prescribes matters concerning the restriction on the rights of residents or the imposition of obligations on residents without the delegation of a law has no effect (see Supreme Court en banc Decision 2010Du19270, Nov. 22, 2012).

2) Although the provisions of the instant ordinance on the submission of data stipulate that the Do governor shall submit data related to personnel verification to the competent commission, it can be deemed that the Do governor imposes an obligation to submit data on the head of a funding institution, etc., which is a person subject to personnel verification. Furthermore, even if examining the entire Ordinance of this case, it imposes an obligation on a person subject to personnel verification to attend and make statements at the competent committee without statutory delegation (Article 7(3)), and if necessary, a witness or a witness is obliged to give testimony and make statements on the premise that he/she attends the competent committee (Article 7(4)).

3) If so, the instant ordinance on the submission of data provides matters concerning the imposition of obligations to residents without delegation by law, and thus, it is not allowed as it violates the proviso of Article 22 of the Local Autonomy Act.

C. We examine whether Article 8(1) and (3), Article 9 subparag. 3, and 4 of the Ordinance of this case violate the Personal Information Protection Act.

1) Article 15(1)3 of the Personal Information Protection Act provides that a public institution may collect personal information if it is inevitable for the performance of its duties under its jurisdiction as prescribed by statutes, etc., and the aforementioned “law, etc.” is natural.

However, as seen earlier, as long as Article 8(1) and (3) of the Ordinance of this case provides matters concerning the imposition of obligations of residents without statutory delegation, Article 9 subparag. 3 and subparag. 4 of the Ordinance of this case (hereinafter “the Ordinance of this case”) requires the submission of personal information data on criminal punishment, administrative sanctions, morality, etc. of persons subject to personnel verification, based on such provision, violates Article 15(1)3 of the Personal Information Protection Act.

2) Article 40(1) of the Local Autonomy Act provides that a local council may request the head of the local government to submit documents related to the deliberation of a local council’s agenda, and Article 41(4) provides that a local council may request the submission of documents if necessary for the inspection or investigation of the local council’s administrative affairs.

However, as seen earlier, the Ordinance of this case provides for the defendant's personnel verification of the head of a funding institution without the basis of superior laws and cannot be permitted. Therefore, it goes beyond the permissible scope of Articles 40 (1) and 41 (4) of the Local Autonomy Act, which stipulate that the Do governor shall submit documents only for the deliberation on the defendant's agenda, or for the investigation and audit of administrative affairs, to require the Do governor to submit personal information data on the criminal punishment, administrative sanctions, morality, etc. of the person subject to personnel verification.

D. Therefore, among the ordinances of this case, the provisions of the Personnel Verification Ordinance, the provisions of the Data Submission Ordinance, and the provisions of the Personal Information Submission Ordinance are unlawful, and as long as the above provisions are unlawful, the re-resolution on the ordinances of this case can be denied in its entirety (see Supreme Court Decision 2002Da23, Apr. 26, 2002, etc.). Thus, the plaintiff's claim of this case seeking the exclusion of the validity of the re-resolution on the ordinances of this case is justified.

3. Conclusion

Therefore, the plaintiff's claim is accepted, and the costs of lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-deok (Presiding Justice)